Citation Nr: 9901675
Decision Date: 01/22/99 Archive Date: 02/01/99
DOCKET NO. 98-05 824 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to service connection for migraine headaches.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
L. Jennifer Lane, Counsel
INTRODUCTION
The veteran had active service from February 1974 to February
1977.
The appeal arises from a rating decision dated in July 1994
in which the Regional Office (RO) denied service connection
for migraine headaches. The veteran subsequently perfected
an appeal of that decision.
REMAND
In this case, the veteran requested a hearing; and it does
not appear that he was seeking a hearing before a member of
the Board of Veterans' Appeals (Board). He did not specify
that he wanted a Board hearing, and he requested a hearing
before perfecting the current appeal. At the time of his
hearing request, the veteran was incarcerated and he did not
know when he would be released. The RO sent a letter to the
veteran in August 1997. According to that letter, “[i]n
regard to your request for a hearing, and to have your
girlfriend or mother speak for you at the hearing, please be
advised that you must be present at your hearing…[t]herefore,
once you have been released from the Dade County Jail, please
request your hearing again.”
Under 38 C.F.R. § 3.103(c)(2) (1998), “[t]he purpose of a
hearing before the RO is to permit the claimant to introduce
into the record, in person, any available evidence which he
or she considers material and any arguments or contentions
with respect to the facts and applicable law which he or she
may consider pertinent.” Also according to that regulation,
“[t]he claimant is entitled to produce witnesses, but the
claimant and witnesses are expected to be present.”
The RO should inform the veteran that he is expected to
appear along with any witnesses he wishes to present
testimony at a hearing and inform him that he may withdraw
his hearing request. If the veteran does not respond to the
RO letter, the RO should schedule a hearing as the veteran
has not withdrawn his hearing request. The Board also notes
that the veteran may have been released from the Dade County
Jail since the issuing of this remand so he may be able to
appear for the RO hearing.
The Board also notes that a VA medical record dated in April
1989 shows that the veteran related that a previous local
doctor had advised him that a head injury caused post-
concussion disorder which led to his migraine headaches. The
veteran has also reported having been hit in the head in
1974. Under those circumstances, the RO should inform the
veteran that he should submit competent medical evidence
linking his current migraine headaches to service or an event
in service. See Robinette v. Brown, 8 Vet. App. 69 (1995).
Additionally, the veteran has related that he applied for
benefits from the Social Security Administration, but it does
not appear that a copy of a decision from the Social Security
Administration and copies of records associated with any such
claim are of record. Review of the claims file also
discloses that copies of many VA records have been obtained.
However, the veteran has reported that he has received
treatment at various VA medical facilities. To ensure that
all pertinent VA medical records have been obtained, the RO
should request further information from the veteran.
While the Board regrets the delay involved in remanding this
case, under the circumstances discussed above, it is felt
that proceeding with a decision on the merits at this time
would not withstand scrutiny by the United States Court of
Veterans Appeals. For that reason and to ensure due process,
the case is REMANDED to the RO for the following action:
1. The RO should inform the veteran that
he is expected to appear at any hearing
along with any witnesses he wishes to
testify. The RO should also inform the
veteran that he may withdraw his request
for a hearing. If the veteran does not
respond to the RO’s letter, the RO should
schedule a hearing. If the veteran fails
to report for the scheduled hearing, the
RO should still engage in the development
listed below.
2. The RO should notify the veteran that
he should submit competent medical
evidence linking his migraine headaches
to service or an event in service.
3. To ensure that copies of all
pertinent VA medical records pertaining
to the veteran have been obtained, the RO
should ask the veteran to identify all VA
medical facilities, including those in
Bay Pines, Gainesville, Pensacola, and
Tampa, Florida and New Orleans,
Louisiana, at which he has received
treatment for headaches since service and
the dates of said treatment. The RO
should then secure copies of records of
all treatment reported by the veteran.
4. The RO should also obtain a copy of
any decision of the Social Security
Administration pertaining to the veteran
and copies of all medical records
associated with the veteran’s claim for
social security disability benefits.
5. After the development requested above
has been completed to the extent
possible, the RO should again review the
record in light of the additional
evidence. If any benefit sought, for
which an appeal has been perfected,
remains denied, the veteran and his
representative should be furnished a
supplemental statement of the case and
given the opportunity to respond thereto
with additional argument and/or evidence.
See Quarles v. Derwinski, 3 Vet.
App. 129, 141 (1992).
Thereafter, the case should be returned to the Board. The
Board intimates no opinion as to the ultimate outcome of this
case. The veteran need take no action until notified.
This claim must be afforded expeditious treatment by the RO.
The law requires that all claims that are remanded by the
Board of Veterans’ Appeals or by the United States Court of
Veterans Appeals for additional development or other
appropriate action must be handled in an expeditious manner.
See The Veterans’ Benefits Improvements Act of 1994, Pub. L.
No. 103-446, § 302, 108 Stat. 4645, 4658 (1994), 38 U.S.C.A.
§ 5101 (West Supp. 1998) (Historical and Statutory Notes).
In addition, VBA’s ADJUDICATION PROCEDURE MANUAL, M21-1, Part
IV, directs the ROs to provide expeditious handling of all
cases that have been remanded by the Board and the Court.
See M21-1, Part IV, paras. 8.44-8.45 and 38.02-38.03.
JEFF MARTIN
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. § 20.1100(b)
(1997).
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